The transformation of a state from military dictatorship to democracy can only be achieved through negotiations or revolution. There is no third way. The latter constructs a new system on the debris of the old one, while the former evolves the systems as well as norms of governance. Pakistan's recent return to democracy was a 'negotiated' transfer.
In the past, Pakistan's superior courts always validated the decisions of those who abrogated the constitution. This first-ever decision of its own kind by the Supreme Court (SC), the nullification of the NRO, has brought into focus many conflicts and contradictions, as well as the question of legitimacy of the last and previous military regimes. If the NRO is nullified, will all the decisions of those governments in the context of foreign policy, defence and other aspects of statehood lose their validity too? What about the legitimacy of the nullification of one ordinance if all others remain intact? Here arises another question; can a military dictator easily mould a constitutional clause through an ordinance and later validate it through parliament?
In the context of the NRO decision, do we need to understand the fundamentals of judiciary? The judiciary is an instrument to administer justice in the name of the state and a mechanism to resolve conflict between state and society as well as social and state stakeholders. The autonomy of this system varies according to the equation and nature of relation between state and society. It also checks the balance between the executive and legislative branches.
Pakistan's history is full of crises. Pakistan undergoes continuous conflict between civil and military actors as well as between the executive and legislature. There has been confrontation over power between the civilians and military, and between the executive, legislature and judiciary. Historically, the balance of power has always been towards the military. It is for the first time in the country's history that the same balance is tilting towards the judiciary, creating an imbalance in governance.
Democracy is the people's exercising of political sovereignty in a direct manner or through parliament by elected representatives. Careful legislation and avoiding an uneven distribution of political power is essential for democracy, which ultimately translates into a balance of power within the branches of governance. The accumulation of powers is one hand is detrimental to democracy.
The primary role of the judiciary is to enforce the constitutional contract and to arbitrate disputes among citizens, branches of state and other stakeholders over its content. It has to resolve constitutional disputes besides settling disputes between the judiciary, and both the executive and parliament.
In Pakistan the judiciary has allowed discussions of executive behaviour and has decided conflicts between citizens and state, especially during military dictatorships or interim governments. They usually discuss the breadth of executive powers, nature of rights, the ideological-religious basis of state and extent of the democratic governance. They also have a role in legitimising state and governments whenever they have lacked it. Even they have been exercising laws without having a constitution in force.
The time has come for all three branches of democratic governance in Pakistan to discuss, determine and create a required balance of power between one another. Besides, the superior courts of the country also have to address the questions posed by the fundamentals of democratic governance and system of justice after the decision on NRO.